Protecting them protects us

Why you should care about what happens to 51 Mexican nationals on death row.

August 04, 2008|Jeffrey Davidow | Jeffrey Davidow, president of the Institute of the Americas in La Jolla, served as U.S. ambassador to Zambia, Venezuela and Mexico in the Reagan, Clinton and both Bush administrations.

In one of his earliest comedies, Woody Allen had a stereotypical pompous U.S. ambassador bellow to an equally stereotypical group of thuggish Eastern European cops that no American could be dragged off and shot without his personal approval.

The ambassador's shout was an understandable, if tortured, explication of something we all know and value: Our diplomatic and consular officials overseas have a primordial responsibility to protect the rights and interests of our citizens traveling and working abroad. The right of people traveling abroad to have immediate assistance from their consulates is so basic that it is enshrined in the Vienna Convention on Consular Relations, a global treaty endorsed by the United States and about 170 other nations.

No citizen is more in need of consular support than one who faces the terrifying ordeal of arrest and imprisonment under a foreign legal system. Immediate access to a consular representative provides trustworthy guidance through the morass of a bewildering judicial process and affords a secure link to home. In some parts of the world, consular assistance is all that stands between foreign prisoners and abuse, torture or even death in custody.

Because thousands of U.S. citizens are jailed abroad every year (sometimes for no good reason), anything that diminishes the power of American consuls to assist them in their time of need is cause for concern. Yet current developments in our own nation are threatening the power of American consuls.

At issue are the cases of 51 Mexican nationals who were arrested, tried and sentenced to death in the United States but were denied consular notification and access. Mexico sought a remedy for these U.S. breaches of the Vienna Convention at the International Court of Justice, the principal judicial arm of the United Nations and the international body that the U.S. and other Vienna Convention signatories had agreed would resolve such disputes. The United States was the strongest proponent of the court at the time of the formation of the United Nations and was the first nation to invoke its jurisdiction related to the Vienna Convention, in a case filed against Iran during the 1980 hostage crisis.

The court heard the case filed by Mexico and, after hearings that involved the full participation of the United States, directed a modest remedy consistent with our nation's commitment to the rule of law: a judicial proceeding in each of the cases to determine whether each defendant's case was prejudiced by not having consular access. In 2004, the Bush administration attempted to enforce the court judgment by directing states to provide that judicial review.

The U.S. Supreme Court, however, in the Medellin vs. Texas decision issued in March, held that although the United States -- and its individual states -- are indeed bound by international law to comply with the International Court of Justice decision, neither that decision nor President Bush's directive is directly enforceable in domestic courts without action on the part of Congress. On July 14, legislation was introduced in the House calling for the implementation of the ICJ's judgment. On July 16, the U.N. court again issued an order directing the United States to prevent the imminent execution of five of the Mexican nationals on death row in Texas.

Thus far, Texas has refused to stay its hand until Congress can act, and instead is proceeding toward the execution Tuesday of Jose Medellin, one of the Mexican nationals.

So we now find ourselves on the brink of an irrevocable violation of the most important treaty governing consular assistance for our citizens detained in other countries. A failure to comply with this most basic of treaty commitments would significantly impair the ability of our diplomats and leaders to protect the interests -- individual and collective -- of Americans abroad. Were the tables turned -- American citizens arrested abroad and denied consular access, with an ICJ judgment requiring review of those cases for prejudice, and another nation refusing to comply -- our leaders would rightly demand that compliance be forthcoming.

I am not personally opposed to the death penalty. But this case is not about the United States' or Texas' rights to implement criminal laws. This case is about our unequivocal treaty obligation to comply with an International Court of Justice judgment and the Vienna Convention, which has allowed diplomats such as myself to save hundreds if not thousands of American lives.

The proposed legislation in Congress is a laudable step, but Congress should move swiftly on it to ensure this country's commitment to its treaty obligations. Meantime, Texas should not move forward with its planned executions while the political branches of the U.S. work to ensure compliance with the ICJ's judgment. A failure to honor our obligation here may undercut our ability to protect our own citizens overseas.